Goodrich v. Chippewa Valley Electric Railroad ( 1900 )

Winslow, J.

It appears by the complaint that the plaintiff was a motorman on one of defendant’s street cars (presumably an adult in full possession of his faculties); that he was directed by the defendant to run his car across the track of a steam-railway company without stopping, and assured that no, accident was liable to occur thereby; that he did as directed, and was run into by cars being operated on the steam-railway track. There is no allegation that the steam-railway track was apparently unused, but it is alleged that the plaintiff did not know that it was frequently used. Upon these facts it is quite plain that the plaintiff cannot recover. The steam-railway track must have been in plain sight. It was itself a danger signal. McKinney v. C. & N. W. R. Co. 87 Wis. 282. It is just as much a signal of danger to the motorman of a street oar as to the ordinary traveler. In crossing it without looking or listening,— as it must be necessarily inferred that he did from the statements of the complaint,— the plaintiff was plainly guilty of contributory negligence. The fact that he was ordered to cross without stopping, and assured that there was no liability of accident, is no excuse to an employee of full age and capacity, who can appreciate the danger as fully as his employer. Showalter v. Fairbanks, M. & Co. 88 Wis. 376.

It is true that the complaint alleges that the brakes were defective and the track improperly constructed, but neither of these facts appears by the complaint to have caused or contributed to the happening of the accident.

By the Court.— Order affirmed.